CRIMINAL PROCEDURE
Class Fourteen
Today’s Topics
Overview: “Protections”
 Impact of Acquittal
 D’s Appeal
 Second Trial of Convicted D

– “Same Offense”
– D Responsible
Today’s Topics

Collateral Estoppel
 Dual Sovereigns
 Aborted Proceedings
 Vindictiveness
Double Jeopardy
Chapter Twelve
Constitutional Provision

Fifth Amendment
– [N]or shall any person be subject for the same
offense to be twice put in jeopardy of life or
limb

Applicable to state prosecutions
[Incorporation Doctrine] in 1969
Common Fact Patterns

Second prosecution after acquittal
 Second prosecution after conviction
 Multiple punishments
Acquittal Consequences for
Prosecution

Second prosecution barred -- even if
acquittal was a mistake
 No appeal from acquittal -- even if rulings
supporting acquittal were incorrect
 No new trial from jury verdict of acquittal
Determining if Court Action =
Acquittal

United States v. Scott
– Final determination of guilt/innocence
necessary
– Contrast with mistrial
– Contrast with dismissal
Determining if Court Action =
Acquittal

Sanabria v. United States
– Trial judge believed he was construing
indictment and ruling on merits

United States v. Martin Lemon
– If trial judge enters judgment of acquittal before
jury reaches verdict, that determination is final
Defendant’s Appeal

Issue: What is the double jeopardy effect of
a reversal?

Concept: Results vary depending on the
ground on which reversal is based
[sufficiency vs. trial error]
Reversal: Insufficient
Evidence

Issue: Does it make a difference whether it is
reviewing court or trial court/jury that determines
evidence is insufficient
– Remember: Finding of insufficient evidence at trial =
verdict of acquittal

Burks v. United States
 Jeopardy interest: Prohibits prosecution from
another opportunity to supply or muster evidence
it failed to provide in first case
Sufficiency vs. Trial Error

Reversal for trial error does not equate to
decision that gov’t failed to prove its case
– Implies nothing about guilt/innocence
– Is determination that D has been convicted
through process that is defective
– Therefore, no jeopardy bar for retrial
Balancing Interests

D has strong interest
in fair determination
of guilt free from
fundamental error
 Society has valid
interest in ensuring
guilty are punished.
Reversal: Trial Court Error

Considering “improper” evidence in gauging
sufficiency
– Issue: What impact when legally competent evidence is
insufficient but trial judge erroneously allowed
incompetent evidence to be introduced at trial [and the
resulting combination was sufficient]
– Lockhart v. Nelson

Defective charging instrument
– Montana v. Hall
Reversal: Trial Court Error

Weight v. Sufficiency
– Tibbs v. Florida
Second Trial of Convicted D

Concept: Following valid conviction, the same
offense cannot be prosecuted again
 Problem: Determining what is the same offense
– Examples: lesser included offense [think: aggravated
robbery with gun, non-weapon robbery]; closely related
offenses [think: speeding and failure to use turn signal
in same transaction]

Analytical Key: Blockburger Rule
Blockburger Test

Asks whether each statutory provision
contains an element the other does not
Blockburger


Crime One
A
 B
 C


Crime Two
A
 B
 D
Blockburger Examples

Brown v. Ohio
– Joyriding as lesser included of auto theft
– Second conviction violated double jeopardy

Grady v. Corbin
– Now abandoned “same conduct” test
– Constitutional detour
Blockburger Examples

United States v. Dixon
– Criminal contempt & possession drugs

Rutledge v. United States
– Elements of conspiracy and “in concert” aspect
of CCE [continuing criminal enterprise]
Recap: Blockburger
Application

Separate

– Crime One
– Crime One


ABC
ABD
ABC
– Crime Two
– Crime Two

Same


ABC
Lesser Included
– Crime One

ABC
– Crime Two

AB
Remedy for Violations

Frequently, reversal and dismissal of results
in second prosecution
 “Reformation”
– Morris v. Matthews [reduced to conviction for
lesser included offense]

D burden: “reasonable probability would not have
been convicted of non-jeopardy barred offense
absent presence of jeopardy-barred offense”
When D Responsible for
Multiple Prosecutions

Concept: If D is responsible for multiple
prosecutions, double jeopardy limitation not
applicable
– Jeffers v. United States [D opposed government attempt
to consolidate]

Cf, Rutledge
– Ohio v. Johnson [D chose over gov’t objection to split
offenses]

Caution: As matter of state law, later trial might raise question
of cumulative punishments
Collateral Estoppel
Collateral Estoppel:
Background

Multiple victims = multiple offenses

May be circumstances when even separate
trials on distinct offenses are
constitutionally barred --- when cases
have ultimate fact in common

Constitutional basis: Due Process clause
Ashe v. Swenson: The Facts


Accused defendants

Crime Victims
– 1
– 1
– 2
– 2
– 3
– 3
– 4
– 4
– 5
Criminal conduct
– 6
– Robbery
– Car theft

Total possible charges
per defendant: 7
Ashe Facts

Trial One [Victim X]
– Gov’t evidence that D had been one of robbers was
weak
– Jury returns verdict of not guilty
– Verdict recites: “not guilty due to insufficient evidence”

Trial Two [Victim Y]
– Six weeks later
Collateral Estoppel

Principle: when an issue of ultimate fact
has once been determined by a valid and
final judgment, that issue cannot be litigated
between the same parties in any future
lawsuit
Determining “Ultimate Fact”

Consider
– Pleadings
– Evidence at trial
– Charge [jury instruction]
– Other relevant matter

Conclude whether a rational jury could have
granted its verdict on an issue other than the fact
on which D seeks to foreclose future litigation
Dual Sovereigns
Constitutional Protection

When Double Jeopardy prohibits successive
prosecutions, it does so only when those
prosecutions are brought by the same
sovereign
 Dual Sovereign = possibility of dual
prosecutions
– Theory: each sovereign has been offended

Inherent in American Federalism
Examples

Rodney King
 Angleton prosecution in Houston
Limitations

If one sovereign acting as “tool” of another
--- sham, or cover
– Bartkus v. Illinois

Current event update: Supreme Court is
considering issue this term
Test Your Knowledge

Is a state a separate sovereign from the
federal government?
 Is city separate sovereign from state in
which it is located?
 Are individual states in the Union dual
sovereigns vis a vis one another?
 Are Indian nations separate sovereign
[recent Supreme Court decision]?
Aborted Proceedings
Scenarios

Trial ends prematurely

Mistrial declared

Examples:
– Prosecutor improperly comments on D’s failure to
testify and D seeks mistrial
– Prosecution’s key witness fails to appear in response to
subpoena
– Jury is deadlocked and cannot reach verdict
Key Terms

“Attachment”

“Manifest Necessity”
Attachment

Jury trial
– When jury empaneled and sworn

Bench trial [to the court]
– When court begins to hear evidence
Mistrial over D’s Objection

Critical concept: Manifest necessity
 General rule: If there is manifest necessary,
then there is exception to double jeopardy
protections
 Test: Manifest necessity exists when end of
public justice are not served if there is no
retrial
Mistrial on D’s Motion

Generally, no double jeopardy bar

Exception: conduct by prosecutor intended
to “goad” D into moving for mistrial
Vindictiveness

Issue: What, if any, limitations are imposed
on courts and prosecutors when a case is
retried.
 Example: More time added to second
sentence following successful appeal.
– Query: Is D being punished for exercising her
right to appeal.
Vindictiveness

Courts
– North Carolina v. Pearce
– Presumption of vindictiveness; can be
overcome

Prosecutors
– Presumption